Negligence: Review

Dr. Steiner

Defining the Standard of Care

The standard of care measures the duty owed Standard of care is the level of expected conduct

that is required under the circumstances The most common standard is that of the

reasonably prudent person, which is an objective standard

The Reasonably Prudent Person

Negligence is the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

--Texas Pattern Jury Charge

The Objective Standardof the Reasonably Prudent Person Because of objective standard,

defendant can’t defend actions as the best that could be expected from a person with poor judgment or limited intelligence

A defendant is expected to know things that a reasonably prudent person would know

Child’s Standard of Care

A child typically is judged by a child’s standard of care, which examines what “an ordinary prudent child of the same age, experience, intelligence, and capacity” would have done

A child, however, is judged by an adult standard when engaged in adult activities for which adult qualifications are required or are inherently dangerous

Elderly Standard of Care Seniors are held to an ordinary

adult standard of care Old age can be considered

when it’s the cause of physical infirmity (then standard is one of reasonable person with same or similar infirmity)

Mental infirmity isn’t considered

Physical Disabilities and the Reasonably Prudent Person The standard of care will reflect the

defendant’s physical qualities A defendant with a physical disability is held

to the standard of a reasonably prudent person with that disability

E.g., a blind person’s conduct will be judged against a reasonable blind person under the same or similar circumstances

Mental Deficiency and the Standard of Care Restatement (majority) position: mentally

deficient persons are liable for torts, and are judged by the standard of a reasonable prudent person of ordinary intelligence and rationality

Some jurisdictions consider whether mental disability suddenly incapacitated defendant from conforming conduct to that of a reasonable person

Custom and Industry Practice Evidence of custom and industry

practice may be used as evidence of what a reasonably prudent person would do (both sword and shield)

Custom is relevant as a “composite judgment” about the risks of situation and required precautions

Custom and Industry Practice

Evidence of custom and industry practice is relevant, but isn’t conclusive on establishing negligence

Custom can lag behind what reasonably prudent person would do (T.J. Hooper)

Medical Standard of Care Plaintiff must prove physician’s

conduct deviated from recognized (customary) medical practice

What’s the proper standard of medical care? Strict locality Same or similar communities National

Informed Consent Majority test: what a reasonable

physician (customarily) would disclose

Patient-centered standard, which includes both objective (Canterbury) and subjective tests, requires disclosure of material risks

Exceptions to disclosure allowed Plaintiff must show causation

The Calculus of Risk

Hand formula: liability if B < L x P B is burden of precaution L is injury P is probability

Applying Hand formula to real-world situations (information costs, incommensurability)

Risk-Utility under Restatement

Statutory ViolationsCourts may use statutes, regulations, and

ordinances to establish standard of careStatute is used as shortcut to reasonable

person standard; the specific duty outlined in the statute replaces general common-law duty

Note different approach to licensing statutesNote different approach to minors and

statutory violations

Threshold Issues

Is plaintiff a member of the class of persons intended to be protected by the statute?

Is the harm the kind that the statute was intended to protect against?

Appropriateness of AdoptingCriminal Standard

Courts don’t have to accept criminal standard as a standard for civil liability; criminal statute must provide appropriate basis for tort liability

Factors to consider include Pre-existing common-law duty? Does statute clearly define prohibited or

required conduct? Direct or indirect relationship with harm?

Effect of Statutory Violation Negligence per se

Statutory violation conclusive on whether defendant violated applicable standard of care

Rebuttable presumption Presumption may be rebutted by party violating

statuteSome evidence

Violation of statute provides some evidence of negligence

Excuse under RestatementExcused violation isn’t negligence

Restatement’s non-exclusive list includes:Violation reasonable because of incapacity

Actor neither knew nor should have known of occasion to comply

Unable after reasonable diligence to comply

Emergency

Compliance would involve a greater risk of harm

Negligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent person. The jury is not asked to judge whether the defendant acted as a reasonably prudent person would have acted under the same or similar circumstances; the statute itself states what a reasonably prudent person would have done. If excuse is not raised, the only inquiry for the jury is whether the defendant violated the statute and, if so, whether this was a proximate cause of the accident.

Effect of Negligence Per SeCarter v. William Sommerville & Son, Inc., 584 S.W.2d 274 (Tex. 1979)

Res Ipsa Loquitur The Thing Speaks for Itself

Rule of evidence that permits jury to infer negligence based on the accident itself where direct evidence lacking

Procedural impact of res ipsa: plaintiff eludes dispositive motions by defendant, gets case to jury

Res Ipsa Requirements

Instrumentality causing injury must be under exclusive control of defendant

Accident wouldn’t ordinarily occur without negligence

Res Ipsa: Type of AccidentRestatement 2d, sec. 328D Event must be one that

does not ordinarily occur unless someone has been negligent

Examples of events that occur without negligence falling down stairs tire blowing out

Examples of events that don’t ordinarily occur without negligence elevator falling boiler exploding derailing train

Procedural Impact at Trial Inference of negligence permitted by jury, not

compelled, orPresumption of negligence: jury must find

negligence if defendant doesn’t provide enough evidence to rebut presumption, or

Shifts burden of proof: defendant must prove by preponderance of evidence that injury wasn’t caused by defendant’s negligence

Res Ipsa and Multiple DefendantsTypically, res ipsa doesn’t apply against

multiple defendantsYbarra’s narrow exception: where plaintiff in

course of medical treatment receives unusual injuries while unconscious, all defendants who had control over body or instrumentalities that may have caused the injuries may be required to explain their conduct

Negligence Per Se v. Res Ipsa Statutory standard defines what reasonably prudent would do

Procedural effect varies Judge determines

whether statute applies Jury decides whether

statute violated, causation, and damages

Rule of evidence prevents directed verdict despite plaintiff having no direct evidence of negligent conduct

Procedural effect varies Judge determines if res

ipsa applies Jury decides negligence,

causation, and damages